Title VII and the FEHA prohibit employers from retaliating against employees for engaging in certain protected activities. See 42 U.S.C. §§ 2000e-2(a), 2000e-3. Title VII claims are governed by the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under this framework, the plaintiff bears the initial burden of demonstrating a prima facie case of retaliation. To establish a prima facie case of unlawful retaliation, a plaintiff must show that (1) she engaged in protected activity; (2) she thereafter was subjected by her employer to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action. See Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 894 (9th Cir. 2005). The requisite degree of proof necessary to establish a prima facie case for Title VII is minimal and does not even need to rise to the level of a preponderance of the evidence.
If a plaintiff makes this threshold showing, the burden of production, but not persuasion, then shifts to the employer to articulate some legitimate, non-retaliatory reason for the challenged action. If the employer does so, the burden shifts back to the plaintiff to demonstrate that the employer’s proffered reason is a pretext for retaliation, “either directly by persuading the court that a [retaliatory] reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Pretext means more than a mistake on the part of the employer; pretext means a lie, specifically a phony reason for some action. See Wolf v. Buss (America) Inc., 77 F.3d 914, 919 (7th Cir. 1996). A plaintiff “cannot simply show that the employer’s decision was wrong, mistaken, or unwise.” Dep’t of Fair Emp’t & Housing v. Lucent Techs., Inc., 642 F.3d 728, 746 (9th Cir. 2011) (internal quotation and citation omitted). Instead, he or she must show “such weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence.” Id. A plaintiff’s evidence on this point “must be both specific and substantial to overcome the legitimate reasons put forth by,” the employer. Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 659 (9th Cir. 2002).
The California jury instructions (CACI No. 2509) define an “adverse employment action” as follows:
Adverse employment actions are not limited to ultimate actions such as termination or demotion. There is an adverse employment action if [name of defendant] has taken an action or engaged in a course or pattern of conduct that, taken as a whole, materially and adversely affected the terms, conditions, or privileges of [name of plaintiff]’s employment. An adverse employment action includes conduct that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion. However, minor or trivial actions or conduct that is not reasonably likely to do more than anger or upset an employee cannot constitute an adverse employment action.
The US Equal Employment Opportunity Commission’s EEOC Enforcement Guidance on Retaliation and Related Issues confirms that a “protected activity” includes participating in a harassment investigation.
The anti-retaliation provisions make it unlawful to discriminate because an individual has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII, the ADEA, the EPA, the ADA, the Rehabilitation Act, or GINA. This language, known as the “participation clause,” provides protection from retaliation for many actions, including filing or serving as a witness for any side in an administrative proceeding or lawsuit alleging discrimination in violation of an EEO law. The participation clause applies even if the underlying allegation is not meritorious or was not timely filed.